Justices protect free speech, even if unspoken

WASHINGTON — A New Jersey police officer demoted because his bosses mistakenly thought he was supporting the mayor's political opponent won a reprieve from the Supreme Court Tuesday.

Two lower courts had upheld Jeffrey Heffernan's demotion a decade ago for an unusual reason: He was not actually engaging in political activity, but rather picking up a campaign sign for his mother. Because of that, they said, his action was not protected under the First Amendment.

But the Supreme Court ruled 6-2 that because the city of Paterson's motive was to prevent political speech protected by the Constitution, Heffernan's demotion from detective to patrol officer was unconstitutional, and he had the right to sue the city under federal civil rights laws.

"What counts is the employer's motive," Justice Stephen Breyer said. "The First Amendment harm, at least in respect to the inhibitory effect upon Heffernan and upon other employees, is about the same whether Heffernan did, or did not, himself intend to support (the mayor's opponent)."

Heffernan lost his case twice before when lower courts ruled that the city's heavy-handed response was mistaken, but not unconstitutional. Since he didn't actually speak or associate, the argument goes, there was nothing for the city to violate.

"He was fired for the wrong reason, but there's no constitutional right not to be fired for the wrong reason," the late Justice Antonin Scalia said during oral argument in January.

His two conservative colleagues, Justices Clarence Thomas and Samuel Alito, dissented from the ruling. "Federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated," Thomas wrote.

During oral argument, Heffernan's lawyer, Mark Frost, argued that the city's retaliation would have a "chilling effect" on other government employees who try to assert their rights. Even Thomas Goldstein, the city's lawyer, acknowledged that Heffernan had "a very sympathetic claim."

But Goldstein said he could have filed a grievance under the city's collective bargaining agreement with its police officers or challenged his demotion under state law. The Constitution, he said, doesn't offer Heffernan any protection.

What's more, Goldstein said, political patronage has a long, rich history. "The court has never tried to extinguish politics from local government," he said. "And if you try to do that in New Jersey, we are going to be here a lot."